C2006/1993, Transcript of Proceedings [2006] AIRCTrans 383 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14369-1

COMMISSIONER SIMMONDS

C2006/1993

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
ACN-117-918-064
s.99 - Notification of an industrial dispute
(C2006/1993)

MELBOURNE

11.07AM, WEDNESDAY, 01 MARCH 2006

Continued from 28/2/2006

Hearing continuing

PN180

THE COMMISSIONER: Ms Walters?

PN181

MS WALTERS: If the Commission pleases, Mr Bourke would like to be heard.

PN182

MR BOURKE: I'm just wondering, Commissioner, in terms of batting order it might be convenient that we go first because we're just dealing with the question of jurisdiction and how MBA, 170MBA works. If it works the way we understand it there would be no purpose for Ms Walters' application.

PN183

THE COMMISSIONER: Yes. It's better if I understood what the application was if you're going to argue the jurisdiction I think. I really think it is best that we go in the normal way.

PN184

MR BOURKE: thank you.

PN185

THE COMMISSIONER: Ms Walters?

PN186

MS WALTERS: Thank you for the Commission's indulgence. If the Commission pleases, I'd like to, prior to commencing, our background and certainly our submissions into what we say the dispute is between the CFMEU and ACN117918064 trading as Hard Core, which we've understood as late as yesterday, and for ease of reference I will refer to the ACN117918064 as ACN. We have two concerns here currently and that is, and you'd be aware we dealt with the question of intervention yesterday in these proceedings before the Commission as currently constituted.

PN187

I have now been provided with correspondence which refers to - well, clearly what the task force say are some issues in relation to the dispute between the CFMEU and the ACN company. And I'm happy to provide a copy of that correspondence to the Commission because that correspondence is of a somewhat urgent nature in terms of any response that we provide to the ABCC, and I think that it may be just in terms of prior to going into the background, that this may be provided to the Commission so that I can then in fact give a broader background to the dispute as it exists prior to leading into submissions.

EXHIBIT #W1 CORRESPONDENCE RE DISPUTE

PN188

MS WALTERS: Now, if the Commission pleases, I simply provide that to the Commission because on the basis of receiving such correspondence and given that the application before the Commission is limited to a dispute in relation to whether or not ACN as a successor company is bound by the Melbourne Transit Enterprise Agreement 2002-2005, which, as alluded to by Mr Bourke, does then deal with a question of interpretation of section 170MB. That is, on our submission the dispute before the Commission is as narrow as this.

PN189

There's a dispute over whether or not the Melbourne Transit Agreement applies to the ACN company, whether or not the Melbourne Transit Agreement does apply and the ACN company is bound by that agreement will be determined by virtue of the operation of section 170MB, which is, as we are all aware, the section of the Act which makes the determination or deals with the issue of successor employers and the fact that if - and as a matter of jurisdiction if it can be determined that a company is a successor assignee or transmittee to an employer that is bound by an enterprise agreement, and that question which we say is mixed of both fact and law is determined then the new company is in fact bound by what we say is the Melbourne Transit Agreement.

PN190

Obviously there are a number of authorities on this point. However, if the Commission pleases, that is what is before the Commission and that is in fact what has been notified as the dispute between the parties principal, and we remain in that context, between the parties principal. We in fact do not say that the task force can be in dispute on that point. The task force may, and the ABCC in line of their functions may have a view as to the operation of that section of the Act, and obviously the Commission has determined may be heard in that context.

PN191

However it appears and it is of concern that given there appears to be on the face of it a situation where it is now being alleged by the ABCC that there are further issues at stake and, if the Commission pleases, in relation to the correspondence that has been provided to you we would seek that that not be made a matter of public record, that it has been provided to the Commission for background information and to remain on file, and it's on that basis that we say we'd seek an adjournment of these proceedings.

PN192

We would seek some directions in relation to the provision of submissions in writing. Obviously there is also a question of the provision of oral evidence to the Commission, as I've indicated, on the authorities, it's quite clear. And I can refer the Commission to the authority of the Australian Rail, Tram and Bus Industry Union v Torrens Transit Services Pty Ltd (2000) Federal Court of Australia 1683. The test as to whether in fact the ACN company is in fact a successor or not is a question of both mixed fact and more, and that test is quite clearly determined and has been determined on the basis of whether or not the successor, the operational activities of the successor are the same operational activities of the prior employer, and that comes down to a question of, are the employees that were employed by Melbourne Transit, are they performing the same work as they were doing there at the ACN company?

PN193

There are some surrounding issues in relation to this. On that basis, if the Commission pleases, and I can reiterate that submission, we seek that the Commission make some directions, and we are open to some discussions with the respondents in this matter, and indeed the Commission may determine that the ABCC should also be heard in relation to that matter. We make no submission in relation to that. What we do say is we would seek some directions so that we can provide some submissions in writing and then set the matter down for the hearing of evidence in relation to that question. We're in the Commission's hands.

PN194

THE COMMISSIONER: Is 170MB and the determination of whether a successor is bound, is that a matter for the Commission?

PN195

MS WALTERS: If the Commission pleases, if what is sought is an order on the basis of MB that the company is bound under that division of the Act, that may in fact, and probably is within the jurisdiction of the Federal Court of Australia. But as previously indicated to the Commission and what is submitted by the CFMEU is that the parties and certainly the application in this proceedings has not come to the Commission seeking such an order. The CFMEU has come to the Commission on the basis of a dispute with ACN and seeks to use that division of the Act to resolve the matter.

PN196

And as submitted we acknowledge though that that does require, for the dispute to be determined, an interpretation of findings in relation of whether or not on the basis of the operation of MB that ACN is bound by the agreement, which we say is a different question to seeking an order under 170MB from the Federal Court. If the Commission pleases.

PN197

THE COMMISSIONER: So what's happened to your foreshadowed application under 170MBA?

PN198

MS WALTERS: The application in terms of 170MBA has not been pressed at this point in time. We remain in the Commission's hands.

PN199

THE COMMISSIONER: Mr Goss?

PN200

MR GOSS: Is it possible for us to have an adjournment?

PN201

THE COMMISSIONER: Sorry?

PN202

MR GOSS: Is it possible to have a five minute adjournment?

PN203

THE COMMISSIONER: For what purpose?

PN204

MR GOSS: So I can have a discussion.

PN205

THE COMMISSIONER: Well, see, what's being sought is for the whole matter to be adjourned subject to directions being given about the - - -

PN206

MR GOSS: Yes, I understand that.

PN207

THE COMMISSIONER: Well, why would you want an adjournment to consider that? You want Mr Bourke to do your work do you?

PN208

MR GOSS: No. We'd like to have a bit of a chat that's all, if that's possible or not.

PN209

THE COMMISSIONER: Well, you've had plenty of time to have a chat before you came in today. Is there some surprise in what - I mean, are you taken by surprise by what - - -

PN210

MR GOSS: No. I need to understand. These proceedings are very legal proceedings.

PN211

THE COMMISSIONER: Yes.

PN212

MS WALTERS: If the Commission pleases, it becomes apparent to the applicant in these proceedings that Mr Goss has been represented in some sense, and certainly if he's seeking advice from Mr Bourke in relation to the conduct of this matter, Mr Goss is appearing in his own right as a respondent and as a director of ACN. Mr Bourke is before you appearing for the ABCC in this matter, and it is something that we'd like to note on the record that is of concern to the applicant. Mr Goss has had ample opportunity to obtain legal advice in relation to these proceedings. In fact he's engaged legal advice previously in relation to surrounding matters from this and it's readily available to him. He has not done so. And we object to the conduct of the respondent in this context.

PN213

THE COMMISSIONER: You don't expect a comment from me about that. Mr Bourke, what do you say about all this? It seems to be to be either what's being proposed is straight forward, and we talk about what directions - - -

PN214

MR BOURKE: We've got no objection to the adjournment.

PN215

THE COMMISSIONER: Which one, the one proposed by Ms Walters?

PN216

MR BOURKE: Ms Walters, and no objection to the adjournment.

PN217

THE COMMISSIONER: But we need to talk about what the directions will look like.

PN218

MR BOURKE: And we could do things by way of written submission, and we could flag that. Depending on the written submissions we will then reflect on whether we have any more useful role in this particular process, because we're only wanting to express a view on jurisdiction, not on any particular facts. So we might attempt to do - - -

PN219

THE COMMISSIONER: Well, there may still be a jurisdictional issue.

PN220

MR BOURKE: May still, but unless we form a view that you will be of assistance by us attending, we'll make an assessment.

PN221

THE COMMISSIONER: Yes. And I think all in all that seems to be pretty sensible. Okay, well, we might just go off the record to discuss the directions.

<OFF THE RECORD

PN222

THE COMMISSIONER: The applicant is to file in the Commission and serve on the respondent and intervenor any witness statements on which it seeks to rely, and its submissions in respect of the matter by close of business on 14 March. The respondent is directed to file in the Commission and serve on the applicant its response to those submissions and any witness evidence it seeks to rely on. The intervenor, if it chooses to participate in the proceedings is to similarly file in the Commission and serve on the applicant and respondent an outline of its submissions. I should also add that the applicant and respondent are to serve their documents on the intervenor as well, as set out in the course of the directions.

PN223

The respondent and the intervenor, if it chooses, the respondent must, and the intervenor, if it chooses to do that, by close of business on 21 March. Filing is to be affected by email addressed to my associate, who will give you his email address. Service can be affected in a similar manner on the other parties or it may be affected by facsimile or personal service. If there's nothing further the proceedings are adjourned. Thank you.

<ADJOURNED UNTIL MONDAY 27 MARCH 2006 [11.30AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 CORRESPONDENCE RE DISPUTE PN187